A recent Law 360 story by Celeste Bott, “BIPA Defendants Must Show Bad Faith For Fees, Judge Says”, reports that an Illinois federal judge has rejected Christian Dior's argument that it should be the first defendant awarded attorney fees under Illinois' biometric privacy law, finding that a threshold showing of a plaintiff acting in bad faith would be required for such an award and that the luxury retailer couldn't meet that burden.

U.S. District Judge Elaine Bucklo in February dismissed the Illinois Biometric Information Privacy Act suit brought by lead plaintiff Delma Warmack-Stillwell, holding that an exemption under BIPA for data captured "from a patient in a health care setting" freed Christian Dior Inc. from the suit over its online tool for users to virtually try on sunglasses.

In May, Dior argued that Judge Bucklo should award it attorney fees and costs, saying BIPA's plain language makes clear that a "prevailing party" may recover its attorney fees and that the Illinois Supreme Court has held that prevailing parties include defendants.  But Judge Bucklo noted that the only way to enforce compliance with BIPA is through the statute's private right of action, and forcing plaintiffs who don't act in bad faith to foot the bill for a defendant's attorney fees would contradict that intent.

"Exposing plaintiffs bringing BIPA suits in good faith, even if ultimately unsuccessful, to attorneys' fees would unduly chill the sole enforcement mechanism for a law the legislature clearly intended to protect critical privacy interests and would defy BIPA's remedial purpose," the judge said.

Dior failed to establish Warmack-Stillwell had acted in bad faith by bringing her complaint, Judge Bucklo said, despite its arguments that she should have known better given two other similar lawsuits against other companies that were dismissed by Illinois federal judges under the same health care exemption — one before Warmack-Stillwell's case was filed and one tossed about a week after hers was filed.

Those district court rulings were not binding, Judge Bucklo said.  "Neither the Seventh Circuit nor the Illinois Supreme Court has expressed guidance on the matter, so it was not unreasonable for plaintiff to pursue her case," she said.  Judge Bucklo said it was "unnecessary" to decide whether BIPA allowed defendants to win attorney fees at all, because the law would still require a showing of bad faith, which Dior failed to meet.